Ninth Circuit to Publish Opinions In-House, Sort Of

The Ninth Circuit Court of Appeals recently announced that it will move to “in-house publishing” of its opinions. According to the press release, “Court staff now manage the process of converting opinions from the original word processing documents into Adobe PDF files, which are then uploaded onto the website, where they can be viewed and/or downloaded by the public.” This task was previously managed by West Publishing, and bringing it in house is expected to save the court $350,000 in the first year.

Hooray? Sort of. I’m glad the Ninth Circuit will be saving itself over a quarter of a million dollars, but that’s basically the only public benefit here. In fact, the headline on the press release is a bit misleading, because the court is not officially publishing their own opinions – West is still doing that. The documents they post are only slip opinions. They are official and can be cited only for a short time before they are published by the official publisher (The Federal Reporter, owned by Thompson West). In order to effect real savings and provide true open access for the public, the Ninth Circuit needs to take this further and actually publish their own opinions.

Right now, when the Ninth Circuit judges issue an opinion and release it on the Web, it is immediately available to read and cite as a slip. After that, however, they send the opinions to Westlaw, who copy-edits each opinion and adds a citation in order to resell it in this final “official” version (in the Federal Reporter). I talked with David Madden in the Public Information Office at the Court, and he confirmed that this process will not change; West’s Federal Reporter will continue to publish the official opinions.

I guess we shouldn’t be surprised that it remains staus quo – Westlaw must have a mighty grip on the courts if they are able to charge $350k per year to post documents to a website. Stop and let that number sink in: $350k to convert word docs to pdf and upload them to the web. That is insane. And when you consider that Westlaw is taking those same opinions and selling them back to us, it’s even more insane. The law is produced at great expense to the American taxpayer (courts, judges, clerks, public attorneys, court reporters all cost money). It carries the imprimatur of government, but is technically owned by private publishers. Judges are actually paying Westlaw to read the law they have written.

There is a solution: universal citation, which is a jargony way of saying courts should just put their own simple citation on an opinion and publish it as official. Drafters insert paragraph numbers into the document for pinpoint citation. Opinions are official and instantly citable once they are online. If the document is declared official by the court, they will also require you to cite to it. Implementing universal citation wouldn’t take much effort, especially now that in-house support is formatting, converting, and posting the documents for the Ninth Circuit.

At the very minimum, the court should have a copy of the final, official opinion. Right now, the only states that actually provide free online access to their official opinions are those states that employ universal citation (and the United States Supreme Court). Hell, get a copy of the official opinions and put them online – we’ll add the paragraph numbers and citations.

The court has a major opportunity here. This is the American West – we started the digital revolution and we are leaders in innovation and technology worldwide. The Ninth Circuit has taken the first step toward eliminating the virtual paywall around court opinions, and now it needs to go further. Other courts of appeal will follow their lead.

The court cites cost savings and ease of use for bringing web posting in house. They want to make the documents friendly to read on a tablet, so they are using a .pdf format. That’s one way to embrace technology, but innovation would be better served by taking a leadership role in applying universal citation to the opinions.

Don’t worry about Lexis and Westlaw, though. They will still find a way to make money off of the slip opinions. As a matter of fact, they are currently fighting over using the temporary slip opinion citation that West produces.

PS. The court is now adding brief summaries to its opinions, which actually IS very useful to those who read them. The release notes that “West previously produced the summaries, but for copyright reasons they could not be included with opinions made online.” $350k doesn’t go very far these days, huh?

Illinois law dean and professor Vikram David Amar comments on the Supreme Court’s recent decision in Franchise Tax Board v. Hyatt and what it says about stare decisis, the notion that prior Court rulings are entitled to respect in the Court today.